A federal judge’s decision to block the Trump administration from enforcing a ban of transgender military service is “likely” to be overturned on appeal, says a former military attorney who serves as general counsel for the Missouri Baptist Convention.
“The Obama Defense Department changed the longstanding policy just last year regarding transgender service in the military,” Mike Whitehead, the Missouri convention’s attorney and a former member of the Army’s Judge Advocate General’s Corps, told Baptist Press, “and President [Donald] Trump merely changed it back.
“A D.C. trial judge cannot substitute her judgment for the President’s about what is good for military readiness and unit cohesion,” Whitehead noted. “The Commander in Chief is likely to prevail on appeal regarding his power to set policy for building a strong, combat-ready force. He certainly has authority to stop diverting scarce defense dollars to social engineering instead of essential health care for wounded warriors.”
In response to a lawsuit by eight current and prospective military members who self-identify as transgender, U.S. District Judge Colleen Kollar-Kotelly issued a preliminary injunction Oct. 30 preventing President Trump from reversing a 2016 Obama administration decision to allow military enlistment and continued service by transgender individuals.
However, Kollar-Kotelly, of the U.S. District Court for the District of Columbia, dismissed a portion of the lawsuit challenging Trump’s ban on using military funds for gender reassignment surgery. None of the plaintiffs, she wrote, demonstrated they were likely to be affected by that portion of the policy.
The ruling put on hold portions of a presidential directive set to take effect in March. The injunction will remain in place until the lawsuit is resolved or a judge revokes it.
A 76-page opinion by Kollar-Kotelly, an appointee of President Bill Clinton, noted the suit is still in “its very earliest stages.” But, she wrote, the transgender ban appears to violate the Fifth Amendment’s guarantee that “no person shall be … deprived of life, liberty, or property without due process of law.”
“On the record before the Court,” Kollar-Kotelly wrote, “there is absolutely no support for the claim that the ongoing service of transgender people would have any negative effect on the military at all. In fact, there is considerable evidence that it is the discharge and banning of such individuals that would have such effects.”
To ban transgender individuals from the military, she wrote, “disfavors a class of historically persecuted and politically powerless individuals.”
Kollar-Kotelly seemed to suggest the administration hastily composed its policy before collecting data to support it, though she left open the possibility such data may emerge as the lawsuit proceeds.
The Justice Department said in a statement it is “currently evaluating the next steps” it will take in the case, according to The Washington Post. Kollar-Kotelly’s order gave both sides until Nov. 10 to state how they plan to proceed.
(EDITOR’S NOTE – David Roach is chief national correspondent for Baptist Press, the Southern Baptist Convention’s news service.)